In re: E.L.E.

An unpublished opinion of the North Carolina Court of Appeals does not
constitute controlling legal authority. Citation is disfavored, but may be
permitted in accordance with the provisions of Rule 30(e)(3) of the North
C a r o l i n a R u l e s o f A p p e l l a t e P r o c e d u r e .
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-113
Filed: 6 October 2015
Ashe County, No. 13 JT 2
IN THE MATTER OF: E.L.E.
Appeal by respondent-mother from order entered 6 November 2014 by Judge
David Byrd in Ashe County District Court. Heard in the Court of Appeals 8
September 2015.
Randolph and Fischer, by J. Clark Fischer, for petitioner-appellee custodians.
Assistant Appellate Defender Joyce L. Terres for respondent-appellant mother.
No brief filed for guardian ad litem.
BRYANT, Judge.
Where the trial court failed to make necessary findings of fact to support its
conclusions of law that grounds exist to terminate respondent’s parental rights, we
reverse.
IN RE: E.L.E.
Opinion of the Court
In February 2010, shortly after Emma’s1 birth, the Ashe County Department
of Social Services (“DSS”) received a report of domestic violence and substance abuse
in her home. DSS arranged for Emma to be placed with her maternal great aunt and
uncle (“petitioners”) though a kinship agreement. Respondent entered into an in-
home services agreement with DSS, but on 3 August 2010 she was arrested for
shoplifting, concealing goods, and possession of a controlled substance.
On 5 August 2010, DSS filed a petition alleging Emma was a neglected juvenile
because she lived in an environment injurious to her welfare and did not receive
proper care, supervision, or discipline. In the petition, DSS reiterated the domestic
violence and substance abuse claims that were first reported in February 2010, and
asserted that respondent had failed to move forward with the Family Service Case
Plan she entered into in March of 2010. Additionally, DSS alleged that respondent
had been arrested for shoplifting as she left a pediatrician’s office after an
appointment for Emma. DSS took nonsecure custody of Emma, but continued
placement of her with petitioners.
After a hearing on 27 October 2010, the trial court entered an order
adjudicating Emma to be a neglected juvenile. The court continued custody of Emma
with DSS and sanctioned her placement with petitioners. The court directed
1 A pseudonym has been used to protect the identity of the minor child pursuant to N.C. R.
App. P. 3.1 (2013).
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IN RE: E.L.E.
Opinion of the Court
respondent to comply with her plan of treatment and awarded her supervised
visitation with Emma for at least two hours per week.
In an order from a review hearing held 23 February 2011, the trial court
continued custody of Emma with DSS and continued to sanction placement with
petitioners. However, the court found that respondent, while not perfect, “had done
well in therapy and drug screen[s,]” and granted her two hours of weekly
unsupervised visitation with Emma. The court conditioned respondent’s
unsupervised visitation upon her continued compliance with her case plan and the
requirements of the Family Solutions House, where she was residing and receiving
mental health and substance abuse treatment and therapy.
The trial court held a combined review and permanency planning on 27 April
2011. The court set the permanent plan for Emma as reunification with a parent,
continued custody of Emma with DSS and placement with petitioners, and increased
respondent’s visitation to include one overnight visitation each week. The court
stated that it was impressed that respondent had not missed any counseling sessions
or classes since her entry into the Family Solutions House, but admonished her for
committing “childish” violations of the house rules.
A second combined review and permanency planning hearing was held by the
trial court on 30 September 2011. In its order from that hearing, the court found
respondent mother was no longer living at the Family Solutions house because she
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IN RE: E.L.E.
Opinion of the Court
was “kicked out” the previous June for continued violations of the house rules. The
court further found that respondent missed several drug tests in July and August
2011, had a recent conviction for driving while impaired, had a sporadic work history
consisting of short-duration jobs, and had married in July 2011. Respondent’s new
husband was a recovering alcoholic and had entered into a Family Service Case Plan
with DSS that required him to obtain substance abuse treatment. The court
incorporated by reference GAL court summaries, particularly the portion of the GAL
summary recording respondent’s poor reunification efforts. The court found that
although respondent had made some recent progress on her case plan, she had not
shown consistent and lasting progress toward correcting the conditions that led to
the removal of Emma from her care.
Based on respondent’s lack of progress, the court concluded that reasonable
efforts toward reunification were futile and relieved DSS of any further responsibility
to work with respondent towards reunification. Nevertheless, the court found that
respondent had a close bond with Emma and that it would not be in Emma’s best
interests to terminate respondent’s parental rights. The court awarded full legal and
physical custody of Emma to petitioners and established a visitation schedule for
respondent. At the next review and permanency planning hearing, the trial court
relieved Emma’s guardian ad litem of further involvement in the juvenile case,
continued legal and physical custody with petitioners, continued visitation with
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IN RE: E.L.E.
Opinion of the Court
respondent, and converted the juvenile case to a Chapter 50 civil action by order
entered 23 June 2012.
On 28 January 2013, petitioners filed a petition to terminate respondent’s
parental rights to Emma. Petitioners alleged grounds existed to terminate
respondent’s parental rights based on neglect, failure to make reasonable progress to
correct the conditions that led to Emma’s removal from her care and custody, failure
to pay a reasonable portion of the cost of Emma’s care, dependency, and
abandonment. See N.C. Gen. Stat. § 7B-1111(a)(1)–(3), (6)–(7) (2013). Petitioners
filed a motion to appoint a guardian ad litem (“GAL”) for Emma, and by order entered
27 February 2013, the trial court reappointed the GAL who had previously
represented Emma in the juvenile case. Petitioners also obtained civil court orders
ceasing respondent’s visitation with Emma.
After a three-day hearing, the trial court entered an order terminating
respondent’s parental rights on 6 November 2014. The trial court terminated
respondent’s parental rights on the grounds of neglect, failure to make reasonable
progress to correct the conditions that led to Emma’s removal from her care and
custody, and failure to pay a reasonable portion of the cost of Emma’s care.
Respondent appeals.
_____________________________
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IN RE: E.L.E.
Opinion of the Court
On appeal, respondent-mother contends the trial court erred by failing to
appoint an attorney advocate. Respondent further argues that the trial court erred in
terminating her parental rights because the trial court’s findings of fact and
conclusions of law were inaccurate.
We first address respondent’s arguments that the trial court erred in
concluding that grounds exist to terminate her parental rights. At the adjudication
stage of a termination of parental rights proceeding, the trial court “examines the
evidence and determines whether sufficient grounds exist under N.C. Gen. Stat. §
7B-1111 to warrant termination of parental rights.” In re T.D.P., 164 N.C. App. 287,
288, 595 S.E.2d 735, 736 (2004), aff’d per curiam, 359 N.C. 405, 610 S.E.2d 199 (2005).
We review the trial court’s adjudication to determine if its “findings of fact are
supported by clear, cogent and convincing evidence and whether these findings, in
turn, support the conclusions of law.” In re Clark, 72 N.C. App. 118, 124, 323 S.E.2d
754, 758 (1984). “Findings of fact supported by competent evidence are binding on
appeal even if evidence has been presented contradicting those findings.” In re L.H.,
210 N.C. App. 355, 362, 708 S.E.2d 191, 196 (2011). Similarly, the trial court’s
findings of fact that are not challenged by the appellant are binding on appeal.
Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). However, “[t]he
trial court’s conclusions of law are reviewable de novo on appeal.” In re J.S.L., 177
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IN RE: E.L.E.
Opinion of the Court
N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006) (citations and internal quotation
marks omitted).
We first address the trial court’s conclusion that grounds exist to terminate
respondent’s parental rights because she willfully failed to pay a reasonable portion
of the cost of care for Emma. This conclusion is based on N.C. Gen. Stat. § 7B-
1111(a)(3), which permits termination of parental rights where:
The juvenile has been placed in the custody of a county
department of social services, a licensed child-placing
agency, a child-caring institution, or a foster home, and the
parent, for a continuous period of six months next
preceding the filing of the petition or motion, has willfully
failed for such period to pay a reasonable portion of the cost
of care for the juvenile although physically and financially
able to do so.
N.C. Gen. Stat. § 7B-1111(a)(3) (2013). Here, Emma was not placed in the custody of
a county department of social services, a licensed child-placing agency, a child-caring
institution, and this ground may only apply if petitioners’ home qualifies as a foster
home. A foster home in North Carolina is defined as a:
[P]rivate residence of one or more individuals who
permanently reside as members of the household and who
provide continuing full-time foster care for a child or
children who are placed there by a child placing agency or
who provide continuing full-time foster care for two or more
children who are unrelated to the adult members of the
household by blood, marriage, guardianship or adoption.
N.C. Gen. Stat. § 131D-10.2(8) (2013). Thus, there are two means by which
petitioners’ home may qualify as a foster home: (1) they are providing full-time foster
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IN RE: E.L.E.
Opinion of the Court
care for a child placed there by a child placing agency; or (2) they are providing full-
time foster care for two or more children who are unrelated to them. Petitioners meet
neither of these criteria. Emma was not placed with petitioners by a child placing
agency because petitioners are Emma’s lawful custodians pursuant to a court order
entered 23 June 2012. Petitioners are also Emma’s maternal great aunt and uncle
and thus related to her by blood. Accordingly, petitioners’ home does not qualify as a
foster home and the trial court erred in concluding that respondent’s parental rights
could be terminated for her failure to pay a reasonable portion of Emma’s cost of care
under N.C.G.S. § 7B-1111(a)(3).
The trial court also concluded that grounds exist to terminate respondent’s
parental rights because she had “willfully left the juvenile in foster care or placement
outside the home for more than 12 months without showing to the satisfaction of the
court that reasonable progress under the circumstances ha[d] been made in
correcting those conditions which led to the removal of the juvenile.” N.C.G.S. § 7B-
1111(a)(2) (2013).
To terminate parental rights pursuant to N.C. Gen. Stat. § 7B-1111(a)(2), the
trial court “shall take evidence, find the facts, and shall adjudicate the existence or
nonexistence of any of the circumstances set forth in G.S. 7B-1111 which authorize
the termination of parental rights of the respondent.” In re C.C., 173 N.C. App. 375,
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IN RE: E.L.E.
Opinion of the Court
618 S.E.2d 813, 819 (quoting N.C. Gen. Stat. § 7B-1109(e) (2003)). Consequently, the
trial court must perform a two part analysis:
The trial court must determine by clear, cogent and
convincing evidence that [1] a child has been willfully left
by the parent in . . . placement outside the home for over
twelve months, and, [2] further, that as of the time of the
hearing, as demonstrated by clear, cogent and convincing
evidence, the parent has not made reasonable progress
under the circumstances to correct the conditions which led
to the removal of the child.
In re O.C., 171 N.C. App. 457, 464, 615 S.E.2d 391, 396 (2005).
Emma had been adjudicated neglected and removed from respondent’s care
and custody due to domestic violence and respondent’s substance abuse. The trial
court made no findings of fact regarding respondent’s progress toward correcting her
domestic violence issues, and the evidence presented at the hearing failed to suggest
that respondent continued to be involved in any domestic violence. On the other
hand, the court did find that respondent had “gone through various substance abuse
treatment programs and ha[d] been ‘clean’ for approximately 18 months.” The court
commended respondent on her progress in addressing her substance abuse issues.
Accordingly, we conclude that the trial court’s findings of fact do not support its
conclusion that respondent had not made reasonable progress under the
circumstances toward correcting the conditions which led to Emma’s removal from
her care. We thus hold the trial court erred in concluding that respondent’s parental
rights could be terminated based on this ground.
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IN RE: E.L.E.
Opinion of the Court
Lastly, the trial court concluded that grounds exist to terminate respondent’s
parental rights because she had neglected the juvenile. Id. § 7B-1111(a)(1) (2013). A
neglected juvenile is defined as:
A juvenile who does not receive proper care, supervision, or
discipline from the juvenile’s parent, guardian, custodian,
or caretaker; or who has been abandoned; or who is not
provided necessary medical care; or who is not provided
necessary remedial care; or who lives in an environment
injurious to the juvenile’s welfare; or who has been placed
for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15) (2013). Generally, “[i]n deciding whether a child is
neglected for purposes of terminating parental rights, the dispositive question is the
fitness of the parent to care for the child ‘at the time of the termination proceeding.’”
In re L.O.K., 174 N.C. App. 426, 435, 621 S.E.2d 236, 242 (2005) (quoting In re
Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)). However, “[w]here, as here,
a child has not been in the custody of the parent for a significant period of time prior
to the termination hearing, the trial court must employ a different kind of analysis
to determine whether the evidence supports a finding of neglect.” In re Shermer, 156
N.C. App. 281, 286, 576 S.E.2d 403, 407 (2003) (citations omitted). In such cases, a
trial court may terminate parental rights based upon prior neglect of the juvenile if
“the trial court finds by clear and convincing evidence a probability of repetition of
neglect if the juvenile were returned to her parents.” In re Reyes, 136 N.C. App. 812,
815, 526 S.E.2d 499, 501 (2000).
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IN RE: E.L.E.
Opinion of the Court
Here, the trial court did not find there was a probability of repetition of neglect
if Emma were returned to respondent and, thus, the ground of neglect is unsupported
by necessary findings of fact. Shermer, 156 N.C. App. at 287–88, 576 S.E.2d at 407–
08. Arguably, competent evidence in the record exists to support such a finding,
however, the absence of this necessary finding requires reversal. Moreover, we note
that in this case there had been no showing that Emma could be returned to
respondent, as she was in petitioners’ custody pursuant to a civil custody order that,
unlike custody granted in a juvenile order under Chapter 7B, could only be modified
upon a showing that “(1) that there has been a substantial change in circumstances
affecting the welfare of the child, and (2) a change in custody is in the best interest of
the child.” Evans v. Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576, 578–79 (2000)
(internal citations omitted). Accordingly, we hold the trial court erred in concluding
that respondent’s parental rights could be terminated on the ground of neglect.
In conclusion, because the trial court erred in concluding that any ground
existed to terminate respondent’s parental rights, we must reverse its order. Because
we are reversing the trial court’s order on this basis, we need not address respondent’s
arguments regarding whether the court erred in failing to appoint an attorney to
represent Emma at the termination hearing or in concluding that it would be in
Emma’s best interests to terminate respondent’s parental rights.
REVERSED.
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IN RE: E.L.E.
Opinion of the Court
Judges McCULLOUGH and INMAN concur.
Report per Rule 30(e).
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